Commonwealth v. GarrisonCommonwealth v. Garrison
- Reporters:
- , ,
- Before:
- Voort
The appellant, Charles Garrison, was tried by a jury and found guilty of charges of arson endangering persons, burglary and conspiracy. Following post-trial motions and sentencing, he filed this direct аppeal with our Court.
The charges arose out of a series of incidents wherein the appellant was involved in a heinous series of acts calculated to terrorize а female acquaintance and her roommate. These acts included the burglary of their premises, setting of a fire at their door which fortunately expired before it could cоnsume the whole apartment house in which they resided, and personal threats of violence towards both women both before and after the arson. Appellant acted with the aid of others in some of these escapades.
On this appeal, several claims of error are raised. The appellant first contends that the trial judge committed severаl errors in his charge to the jury.
1
It is argued,
inter alia,
that the trial court erred by incorrectly charging the jurors on the element of recklessness in the arson crimes charged and by unfairly commenting upon the evidence presented. Neither of these allegations of error were raised at trial at the conclusion of the
Appellant raises other contentions concerning the jury сharge which were preserved by appropriate specific objection at the conclusion of the charge and by inclusion in post-trial motions. Appellant’s claim thаt the charge incorrectly explained the reasonable doubt standard to the jury is completely devoid of merit. Our review of the charge reveals that the explanation оf that standard by the trial judge was clear, correct and in compliance with a multitude of appellate decisions.
The appellant also argues that the lower court incorrectly defined the requisite elements necessary to prove the arson charge. It is claimed by appellant that the Commonwealth had to prove the burning of a building and not а mere scorching or discoloration. The relevant law, prior to 1973, was contained in
“Section 220.1 .....is famed in terms of starting a fire or causing an explosion. Thus, the actor is guilty of arson even though the fire is extinguished before any significant damаge is done. In effect, the attempt is punishable equally with the completed offense.”
We agree with that comment and find appellant’s contentions to the contrary to be withоut merit.
Next, the appellant contends that the lower court improperly denied him the right to waive a jury trial. The record shows that several days prior to the jury trial in the instant case, thе appellant requested a non-jury trial. Judge McDermott (who finally presided at the appellant’s trial), honored the appellant’s request and sent him to another courtroom, where jury waivers and non-jury trials were scheduled. The appellant apparently did not waive jury trial when given that opportunity. Upon his return to the courtroom of Judge McDermott, the aрpellant indicated he would waive a jury trial before another judge, but would not waive one before Judge Mc-Dermott. From reading the record it becomes clearly appаrent that appellant was “shopping” for another judge. He even furthered these efforts by attempting to discharge his defense attorney on the day of trial, as will be more fully discussed below. We do not feel that the lower court’s actioii in refusing to accept a jury waiver was erroneous in these circumstances.
Rule 1101 of the Pennsylvania Rules of Criminal Procedure expressly provides the trial judge with discretion in accepting a criminal defendant’s waiver of jury trial. It provides,
inter alia,
that “. . . the defendant may waive a jury trial with . . . approval by a judge of the сourt in which the case is pending.” It is well established that there is no constitutional prohibition to a
In the instant circumstances, we find that the lower court committed no abuse of discretion in denying appellant’s waiver request since it was apparent that the appellant’s only purpose for attempting such waiver was to maneuver for a judge he thought might be more lenient or for other reasons more desirable. The lower court must examine the waiver оf jury trial carefully since it constitutes a relinquishment of a significant and fundamental constitutional right. Commonwealth v. Stokes, 450 Pa. 167, 299 A.2d 272 (1973). The defendant must demonstrate a knowing, intelligent and understanding waiver before the trial court can agree to permit trial without jury. Commonwealth v. Garrett, 439 Pa. 58, 266 A.2d 82 (1970). In the instant case appellant’s expressed reasons for requesting jury trial, and total conduct suggest less than a knowing and intelligent basis for the relinquishment of аn important constitutional right. Moreover, such attempts to “shop” for a more desirable judge, as are exhibited in the record of this case, are not to be condoned.
Last, аppellant contends it was error to have compelled him to be represented by his trial counsel, who also represents him on this appeal. As noted above, the aрpellant, in his efforts to avoid trial before Judge Me-
In light of these facts, we see no error in the lower court’s denial of the appellant’s request to replace counsel. The request was obviously an attempt to obstruct orderly proceedings, solely to accomplish appellant’s goal of trial before another judge. Such attempts at disruption and efforts to replace appointed counsel cannot be countenanced. Compare Commonwealth v. Stiles, 229 Pa. Super. 411, 323 A.2d 841 (1974).
Affirmed.
Notes
. The record available to our Court contains only one written set of post-trial motions raising the general grounds that the verdict was “contrary to law”, “contrary to the evidence,” and contrary to the weight of the evidence. Since the post-trial motions in this case arose subsеquent to Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), we would ordinarily decline review of all other grounds. Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975). However, the transcript of argument on the post-trial motions reveals reference to a “brief” presented by defense counsel subsequent to the filing of the motions but prior to the hearing on the motions. This “brief” apparently contained additional written claims which were discussed by the lower court at the hearing. It would have been clearly preferable to have included such documents in the official record to make it complete and aid our review. In view of uncertainty as to who might have been responsible for such failures, we will not apply the waiver principle established ’ in Blair, supra and Bailey, supra.
. It is claimed on this appeal that appellant had a desire to represent himself, in reliance upon Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, the trial record is totally devoid of any suggestion or request by appellant for self representation. He took advantage оf the court’s offer to hear the basis for his request; he merely expressed the desire to avoid non-jury trial before Judge McDermott. It is clear that an indigent criminal defendant is entitled to аppointed counsel, but not necessarily any appointed counsel he may choose. Commonwealth v. Shirk, 228 Pa.Super. 356, 323 A.2d 99 (1974).
. In fact, appellant complimented counsel on his efforts, on the record, at the timé of sentencing and asked the court to continue the appointment through the course of post-trial appeals.